Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta
Assume that Mr. Plaintiff received the following injuries after being struck by a vehicle while he was a pedestrian in a marked crosswalk:
- facial smash”, which entailed fractures to his skull and many of his facial bones, requiring surgery for reconstruction, with hardware;
- thighbone fracture, requiring surgery and the implantation of a nail;
- complicated mild traumatic brain injury whereby Mr. Plaintiff experienced:
- daily headaches;
- lower cognitive abilities, including difficulties with organization, concentration, memory and slow thinking speed;
- ongoing psychological injuries including major depressive disorder and PTSD;
- post-concussion vertigo syndrome, chronic pain, tremor, and sleep disorder exacerbation
Mr. Plaintiff spent 12 days in hospital and suffered cognitive decline to the extent that he had to retire early from his intellectually challenging self-employment. Mr. Plaintiff’s daily living was significantly affected as a result of the collision.
Listed below are select case summaries that we considered for our analysis:
|Pelletier v. Ontario, 2013 ONSC 6898,||$250,000||$268,250|
In this case the 28-year-old male plaintiff was struck by a police cruiser when he was riding his bicycle at night through a pedestrian crosswalk. The defendant officer was found to be 60% liable for the accident.
Prior to the accident the plaintiff had a very troubled background and he had extensive pre—existing issues. He was born to a 13-year-old mother and his father committed suicide. He was removed to the care of the Children’s Aid Society and eventually was raised with the family of his mother’s boyfriend, where he was sexually abused over an extensive period of time. He did very poorly in school, had at best a grade 9 education at the time of the motor vehicle accident, and had a learning disability. He was taken under the wing of the Browne family in his later adolescence and worked odd jobs as a dishwasher, cook etc. Prior to the motor vehicle accident he experienced occasional back and neck pain, and obtained chiropractic treatment. He became addicted to painkillers and began to abuse street drugs. He had abandonment issues, attachment issues and significant psychological sequelae arising from the long period of sexual abuse he had suffered as a child. He had difficulty maintaining relationships and was depressed. He attempted suicide on four occasions.
In the accident the plaintiff was thrown over the hood of the car and he smashed his face on the windshield or the passenger side mirror, or both. He slipped in and out of consciousness. When he was taken to the hospital it was determined that his facial fractures were limited to his nose and nasal septum. He had other deep facial lacerations as well. He also suffered C–6 and C –7 spinous process fractures as well as a T1 spinous process fracture. He had two broken bones in his right foot and two broken bones in the ring finger of his right hand. He underwent surgery to repair his badly damaged nose, which had to be reconstructed using plates and screws and required a skin graft. When he was discharged an Occupational Therapy report recorded that he had a closed head injury, a skull fracture, a fractured nose, a right foot fracture, a right hip fracture, a right-hand ring finger fracture, a C – 6/7 transverse process fracture and multiple lacerations. The trial judge accepted that the weight of the evidence suggested that he suffered from a mild traumatic brain injury.
After his accident the plaintiff went to live with the Browne family, and this was a difficult experience. The Brownes said that he had no desire to get up and do anything, he slept a lot, his hygiene was terrible, he would not join them for dinner, and he no longer rode a bike nor watched movies. He prepared basic meals for himself such as a bowl of cereal or something microwavable. He could not hold down a job and began drinking heavily. He was evicted from the Brownes’ house for a period of time, and, eventually, for good. At the time of the trial he was living in a supervised residential home with a personal support worker.
The medical evidence at trial indicated that his primary injury was a “facial smash injury which resulted in permanent and significant facial disfigurement”, and chronic pain in his neck, back and right foot which developed into a chronic pain syndrome. He was also diagnosed as having PTSD, ADHD, an anxiety disorder, major depressive disorder, and opioid and alcohol dependence, in full remission. Evidence was also given as to his mild traumatic brain injury. He also suffered from sleep disturbances, apathy syndrome, impulsivity, and cognitive difficulties, as well as excessive weight gain.
The plaintiff sought general damages at the level of the “cap”, which was then $338,000. The defendants suggested a general damage award ranging between $200,000 and $250,000. The trial judge awarded $250,000, suggesting that he might have awarded the full “cap” if the plaintiff had not presented with such extensive pre-existing impairments. The trial judge held that the injuries impacted his ability to function on a daily basis as he could no longer ride a bike and that the scar on his face had a devastating effect on him emotionally. The plaintiff’s psychological injuries were far worse than his physical injuries and he had a very compromised coping system. He had been teetering on the edge of functionality for several years, and the accident pushed him over the edge.
This case has been selected as the major injuries suffered were facial smash, chronic pain and mild traumatic brain injury, with significant psychological injuries. The case clearly marks the high water of a general damage award that could be anticipated.
|C.(H.) v. Loo, 2003 ABQB 52,||$200,000||$256,400|
|(2003), 59 Alta LR (4th) 25,|
|Varied on another point at 2006 ABCA 99|
In this case the 41-year-old female plaintiff was hit by the defendant’s car as she crossed a busy street in Fort McMurray, Alberta. She was held to be 50% contributorily negligent, and this was upheld on appeal. She suffered a fractured left humerus, fracture of left tibia and fibula, fractures of facial bones, multiple facial lacerations and a closed head injury with hemorrhage. Her facial scars extended from her left eyebrow to the bridge of her nose and were about 6 cm in length. Her broken leg was treated by open reduction and insertion of a metal screw. She spent over two months in hospital. She was unable to walk unaided for a number of months after the accident and still had difficulties with climbing stairs. The arm injury was more serious than the leg injury and the head of her left humerus finally had to be replaced with an artificial one in further surgery. The trial judge found her left arm movement to be permanently impaired. Her whole person impairment was assessed at 20%. She was left with residual pain. Her most serious injury however was the head injury, which resulted in a major overall loss of cerebral function. This caused a marked change in her personality. She suffered an epileptic seizure more than three years after the accident and, following the seizure, was unable to care for herself and required 24 hour day supervision. She was able to take care of her basic hygienic needs, feed herself, and do things like watch television, listen to music, play card games and do crafts and puzzles. Her brain damage made her unpredictable, however, and she had poor judgement and exhibited inappropriate behaviour such that she needed to be supervised. She was made a dependent adult by court order in 2000. She complained of depression, but the trial judge found that this was a condition that pre—existed the accident. The plaintiff had misused both alcohol and prescription drugs for many years. It was held that the head injury suffered in the accident materially contributed to the plaintiff’s seizure and the seizure could not be attributed entirely to her drug and alcohol abuse problem. On appeal she was awarded additional monies in special damages to compensate for pre—trial care.
|Adamson v. Charity, 2007 BCSC 671||$200,000||$236,400|
In this case, in 2000, the defendant failed to stop at a stop sign and crashed his SUV into the plaintiff’s pickup truck. The 48-year-old male plaintiff suffered from chronic pain syndrome, major depression disorder of moderate severity, and mild traumatic brain injury. He suffered from dizziness following the accident. He had residual problems with attention, short – term memory and concentration. He had severe headaches with upper neck pain and imbalance. He did not work following 2003, and the trial judge found him to be competitively unemployable. Prior to this he operated a home renovation business and the plaintiff and his wife were co—venturers in a family rental property business.
|Patterson v. Hussey, 1993 CarswellOnt 2085||$145,000||$223,445|
|Affirmed on appeal at 1987 CarswellOnt 1711|
In this case the plaintiff was involved in a head – on collision with the vehicle of the defendant when he was returning home from his work as a mechanic. He suffered a brief loss of consciousness at the scene of the accident. He suffered critical injuries to the head and stomach area. He had facial fractures around the eye rim and nasal bones and a mid – shaft fracture in the right leg. For a while he suffered double vision. The screws in his head caused some discomfort and a scar extended all the way down the centre of his body from the top of his chest to below his stomach. He also suffered from constant dull pain in his bowel, chronic fatigue, stomach, bowel, facial and left eye problems, a cognitive deficit which reduced his ability to filter out extraneous noise and stress, life-threatening high blood pressure and the possibility of future operations. His ability to perform as a mechanic substantially deteriorated and when he returned to work after the accident he had lost his competitive edge. When the economy declined he was one of the first mechanics to be dismissed by the company. He started up his own business but had limited success and earned a limited income.
The general damage award was appealed to the Ontario Court of Appeal as excessive. The appellate court found that although the award was at the high end of the range they were not persuaded that the award was so high that they should intervene.
|Geiger v. Christiansen Estate, 2006 SKQB 286||$150,000||$181,050|
In this case the male plaintiff, age 48 at the time of trial, was a passenger in a small aircraft being flown by his good friend, the pilot. Three minutes after takeoff the airplane experienced engine trouble and crashed into a lake. The pilot was killed instantly and the plaintiff sustained serious injuries. The plaintiff suffered serious head injury resulting in “frontal lobe damage” and PTSD, three fractures to his neck, a fractured right arm, three fractured ribs on his left side, multiple facial fractures, raccooned eyes, a ripped open head, neck and chest, and an injury to his right knee. His right arm eventually healed after being in several casts for a total of six weeks. His various lacerations healed, except for the head laceration, around what he had been left with some residual numbness above his brow. He had daily headaches, for which he took six daily Tylenol’s, and had constant depression, PTSD, frontal lobe damage and nightly bedwetting. The PTSD symptoms included hypervigilance, excessive startle response, disturbed sleep, generalized anxiety disorder and social withdrawal. He had difficulty concentrating and his short term memory was poor. He was irritable, had a “short fuse”, felt very tired and became overwhelmed easily. His emotions were unstable and he cried easily and said inappropriate things. He had no sex drive. Evidence was given that he had Frontal Lobe Syndrome, which included a disturbance of his executive function and loss of memory. The trial judge accepted that because of the PTSD and frontal lobe damage he was not able to work since the accident.
The action brought by the plaintiff against the estate of the defendant pilot was dismissed in the result, but the court provisionally assessed damages.
|Weber v. deBrouwer, 2012 BCSC 1039||$150,000||$162,450|
In this case the 49-year-old male plaintiff was the defendant’s former supervisor and was assaulted by the defendant in 2007. He suffered a concussion, fractured nose, several facial fractures, dental injuries, chest and rib injuries, and injuries to his knee, and, back and neck. After his physical injuries had healed, he continued to suffer depression, nightmares, difficulty concentrating, a speech impairment and on – going anxiety. He was diagnosed with mild traumatic brain injury and with PTSD in mild remission. He continued to have difficulties with the alignment of his jaw, he was clumsy, and he had difficulty finding and pronouncing some words. The plaintiff argued that the assault caused him to move, made it difficult to obtain employment, resulted in less remunerative self – employment, caused some difficulty dealing with conflict situations and resulted in avoidance of social activities. General damages of $150,000 were awarded based on the severity of the original injuries and the lasting psychological effects on the plaintiff. The plaintiff did not follow a number of doctor’s recommendations, including the use of medication, psychological treatment and reduction and alcohol consumption, and his overall award was therefore reduced by 30%.
|Goguen v. British Columbia, 2002 BCSC 1598||$125,000||$164,750|
In this case the male plaintiff, age 50 at the time of trial, suffered serious facial fractures and wrist injuries, loss of five teeth, PTSD and a mild traumatic brain injury when thrown from a bicycle. The plaintiff underwent surgery to repair fractures in his face and wrist, had dental surgery to repair teeth and experienced significant pain throughout the recovery period. The plaintiff was briefly unconscious at the scene of the accident. In terms of the mild traumatic brain injury, the plaintiff suffered memory problems, dizziness, attention/concentration problems and emotional lability. He slept a great deal, and experienced considerable sadness while grieving his loss. Further, the plaintiff suffered personality changes and forgetfulness as a result of both his brain injury and PTSD. The wrist and forearm did not respond well to physiotherapy and the plaintiff was left with only 50% strength and with pain on certain rotations of his wrist. A plate and screws were inserted into the right wrist during surgery. The plaintiff’s dental injuries were severe and in addition to losing 5 teeth, 11 other were injured, as well as the surrounding soft tissues and bone. The extensive dental repairs took about a year. The plaintiff’s participation in sports and other recreational activities was greatly reduced as a result of his injuries. His enjoyment and quality of life was permanently altered. The plaintiff was a paramedic who regularly worked over time prior to the accident. Following the accident he seldom worked over time due to his physical limitations and he was placed on lighter duties as a paramedic.
This plaintiff continued to suffer permanent wrist injuries which interfered with his employment and his recreational pursuits, and he had severe dental injuries.
|Calahasen v. Northland School||$135,000||$146,205|
|Division No. 61, 2012 ABQB 611|
In this case the male plaintiff was assaulted by 10 to 15 people– he was aged 40 at the time of the assault. Prior to the assault he was employed as a security guard with the school division. He sustained a mild-moderate traumatic brain injury and facial deformity. His injuries included basal skull fractures, brain concussion, and fractures of his nose and orbital floor, in addition to other facial fractures. He continued to suffer pain from his facial fractures, and had double vision for two years. In terms of his brain injury, he had few difficulties with higher processing skills but had significant difficulty with attention and short term memory. He also suffered from depression, PTSD and post – concussion syndrome. He was deemed not to be employable and his injuries further prevented him from continuing to participate in sports.
|Ivanovic v. Cayenne, 2014 CarswellAlta 832||$120,000||$126,360|
In this case the 24-year-old male engineering technology student plaintiff was assaulted and robbed by the defendants while delivering pizza. He sustained a fractured skull, subdural hematoma, contusions to his scalp and brain, swelling of his brain, lacerations, soft tissue injuries and swelling and bruising to his right eye. He was diagnosed as having a mild traumatic brain injury. He had headaches, poor concentration and diminished thought process skills. He had mood and emotional problems, fatigue, anxiety and depression. He would lose personal items and forget conversations, which affected his relationship with his wife. He finished school in 2006, but his grades dropped from almost straight As to Bs and Cs and he did not pursue an engineering degree.
This plaintiff did not appear to suffer from chronic pain.
If you have been injured in an accident, the lawyers at Kubitz & Company would be pleased to discuss the claims that are available to you. We are honored to represent injured Plaintiffs. We do not act for insurance companies. Call us at 403-250-7100 for a consultation with one of our lawyers if you are thinking of, or are unsure of, whether you ought to pursue a claim or not.
Article edited by Peter Trieu, a personal injury lawyer in Calgary, Alberta.